Pre-removal detention upon arrival
Under Article 44(6) of the Law on Aliens in the Republic of Bulgaria (LARB), a third-country national may be detained where:
His or her identity is uncertain;
He or she is preventing the execution of the removal order; or
There is a possibility of his or her hiding.
The different grounds are often used in combination to substantiate detention orders in practice. According to an analysis of jurisprudence of the Administrative Court of Sofia and the Administrative Court of Haskovo in the period 2012-2015, the Centre for Legal Aid – Voice in Bulgaria found that the majority of detention orders were based on grounds of identity, often combined with a risk of absconding.1 The ground of safeguarding the implementation of a return order was found to be rarely, if ever, applied.2 In the Bulgarian Helsinki Committee’s experience, however, detention orders are issued based on a combination of all three grounds for detention.
In practice, detention of third-country nationals is ordered by the border or immigration police on account of their unauthorised entry, irregular residence or lack of valid identity documents. After the amendments of the LARB in the end of 2016,3 these authorities can initially order a detention of 30 calendar days within which period the immigration police should decide on following detention grounds and period or on referral of the individual to an open reception centre, if he or she has applied for asylum.
In 2017, the number of persons issued a detention order for reasons of removal was 2,989. This included 2,194 asylum seekers.
The law does not allow the SAR to conduct any determination procedures in the pre-removal detention centres.4 However, as of 31 December 2017 and presently, the SAR continues to register, fingerprint, and in some cases interview asylum seekers in pre-removal detention centres and to keep them there after issuing them asylum registration cards. Their release and access to asylum procedure is usually secured only by an appeal against detention and a court order for their release.
The most negative development in 2017 concerned the SAR’s practice of also conducting the status determination procedure in the pre-removal detention centre. The approach was applied specifically to certain nationalities as a method of deterrence. In principle, this affected nationalities from certain countries such as Afghanistan, Algeria, Bangladesh, Pakistan, Sri Lanka, Turkey and Ukraine which are treated as manifestly unfounded. Since the beginning of 2017 a total 77 applicants - 3.6% of all new applicants – had their cases determined by the SAR in the detention centres of Busmantsi and Lyubimets.
For the time being, this malpractice is unanimously supported by the courts, which find that the asylum procedure in pre-removal centres is a violation of procedural standards but an insignificant one as the rights of the asylum seekers during the status determination are not severely affected.5 All asylum seekers processed in pre-removal detention centres are being determined by the SAR in an Accelerated Procedure, which strips them of the right to an onward appeal and thereby prevents them from challenging the practice further before the Supreme Administrative Court.
Asylum seekers can also be placed in closed reception facilities i.e. detention centres under the jurisdiction of the SAR during the determination of their claim. The national grounds transpose Article 8(3)(a), (b), (d) and (f) of the recast Reception Conditions Directive, according to which an applicant may be detained:6
In order to determine or verify his or her identity or nationality;
In order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
When protection of national security or public order so requires;
For determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
In 2017, 13 asylum seekers were placed in asylum detention, exclusively for reasons of national security or public order. The main ground for such detention at the end of 2016 concerned asylum seekers involved in riots in the Harmanli reception centre in November 2016. Other reasons applied in practice in 2017 are excessive violence, systematic disorder or theft committed in the reception centre. However, the Administrative Court of Sofia ruled out excessive violence as a valid reason for placing an applicant in a closed centre, unless corroborated with evidence of ongoing criminal investigation, prosecution or conviction judgment.7
- 1. Centre for Legal Aid – Voice in Bulgaria, Who Gets Detained?, available at: http://bit.ly/2jui7fo, September 2016, 21.
- 2. Ibid.
- 3. Law amending the Law on Aliens in the republic of Bulgaria, No 97/2016, 2 December 2016, available in Bulgarian at: http://bit.ly/2kJoYpi.
- 4. Additional Provision 5 LAR; Article 45b LAR.
- 5. Bulgarian Helsinki Committee, 2017 Annual Strategic Litigation Report, January 2017. See e.g. Administrative Court of Sofia, Decision No 5378, 17 September 2017; Decision No 4740, 14 July 2017; Decision No 5105, 2 August 2017, Decision No 193, 14 March 2017; Administrative Court of Haskovo, Decision No 187, 16 March 2017.
- 6. Article 45b(1) LAR.
- 7. Administrative Court of Sofia, Decision No 7173, 29 November 2017.